Calvin Smith v. State

Opinion

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 17, 2016

The Court of Appeals hereby passes the following order: A16A1128. CALVIN SMITH v. THE STATE.

In 2011, Calvin Smith pled guilty to kidnapping and aggravated battery. In December 2015, he filed a Motion to Vacate Void Sentence, contending that the state failed to prove venue.1 The trial court denied the motion, and Smith appeals.

Despite its caption, Smith’s motion is, in substance, an effort to set aside or vacate his convictions. But as the Supreme Court has made clear, a post-conviction motion seeking to vacate an allegedly void criminal conviction is not one of the established procedures for challenging the validity of a judgment in a criminal case, and an appeal from the trial court’s ruling on such a petition should be dismissed. See Roberts v. State, 286 Ga. 532 (690 SE2d 150) (2010). A direct appeal may lie from an order denying or dismissing a motion to correct a void sentence if the defendant raises a colorable claim that the sentence is, in fact, void or illegal. See Harper v. State, 286 Ga. 216, n.1 (686 SE2d 786) (2009); Burg v. State, 297 Ga. App.

1 The motion is not included in the record for this appeal but was transmitted to this Court as a supplemental record for Smith’s prior appeal. See Case No. A16A0622.

118, 119 (676 SE2d 465) (2009). Smith’s motion, however, presented challenges to his convictions, not his sentence. Because Smith may not attack his convictions in this manner and did not assert a colorable void-sentence claim, this appeal is hereby DISMISSED.

Court of Appeals of the State of Georgia 05/17/2016

Clerk’s Office, Atlanta,____________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.